Case Information
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION TIMOTHY KING, MARIAN ELLEN
SHERIDAN, JOHN EARL HAGGARD,
CHARLES JAMES RITCHARD,
JAMES DAVID HOOPER, and
DAREN WADE RUBINGH,
Plaintiffs, v. Civil Case No. 20-13134
Honorable Linda V. Parker GRETCHEN WHITMER, in her official
capacity as Governor of the State of Michigan,
JOCELYN BENSON, in her official capacity as
Michigan Secretary of State, and MICHIGAN
BOARD OF STATE CANVASSERS,
Defendants,
and
CITY OF DETROIT, DEMOCRATIC
NATIONAL COMMITTEE and
MICHIGAN DEMOCRATIC PARTY, and
ROBERT DAVIS,
Intervenor-Defendants.
___________________________________/
OPINION AND ORDER DENYING PLAINTIFFS’ “EMERGENCY MOTION FOR DECLARATORY, EMERGENCY, AND PERMANENT INJUNCTIVE RELIEF” (ECF NO. 7)
The right to vote is among the most sacred rights of our democracy and, in turn, uniquely defines us as Americans. The struggle to achieve the right to vote is one that has been both hard fought and cherished throughout our country’s history. Local, state, and federal elections give voice to this right through the ballot. And elections that count each vote celebrate and secure this cherished right.
These principles are the bedrock of American democracy and are widely revered as being woven into the fabric of this country. In Michigan, more than 5.5 million citizens exercised the franchise either in person or by absentee ballot during the 2020 General Election. Those votes were counted and, as of November 23, 2020, certified by the Michigan Board of State Canvassers (also “State Board”). The Governor has sent the slate of Presidential Electors to the Archivist of the United States to confirm the votes for the successful candidate.
Against this backdrop, Plaintiffs filed this lawsuit, bringing forth claims of widespread voter irregularities and fraud in the processing and tabulation of votes and absentee ballots. They seek relief that is stunning in its scope and breathtaking in its reach. If granted, the relief would disenfranchise the votes of the more than 5.5 million Michigan citizens who, with dignity, hope, and a promise of a voice, participated in the 2020 General Election. The Court declines to grant Plaintiffs this relief.
I. Background
In the weeks leading up to, and on, November 3, 2020, a record 5.5 million Michiganders voted in the presidential election (“2020 General Election”). (ECF No. 36-4 at Pg ID 2622.) Many of those votes were cast by absentee ballot. This was due in part to the coronavirus pandemic and a ballot measure the Michigan voters passed in 2018 allowing for no-reason absentee voting. When the polls closed and the votes were counted, Former Vice President Joseph R. Biden, Jr. had secured over 150,000 more votes than President Donald J. Trump in Michigan. ( Id. )
Michigan law required the Michigan State Board of Canvassers to canvass results of the 2020 General Election by November 23, 2020. Mich. Comp. Laws § 168.842. The State Board did so by a 3-0 vote, certifying the results “for the Electors of President and Vice President,” among other offices. (ECF No. 36-5 at Pg ID 2624.) That same day, Governor Gretchen Whitmer signed the Certificates of Ascertainment for the slate of electors for Vice President Biden and Senator Kamala D. Harris. (ECF No. 36-6 at Pg ID 2627-29.) Those certificates were transmitted to and received by the Archivist of the United States. ( Id .)
Federal law provides that if election results are contested in any state, and if the state, prior to election day, has enacted procedures to decide controversies or contests over electors and electoral votes, and if these procedures have been applied, and the decisions are made at least six days before the electors’ meetings, then the decisions are considered conclusive and will apply in counting the electoral votes. 3 U.S.C. § 5. This date (the “Safe Harbor” deadline) falls on December 8, 2020. Under the federal statutory timetable for presidential elections, the Electoral College must meet on “the first Monday after the second Wednesday in December,” 3 U.S.C. § 7, which is December 14 this year.
Alleging widespread fraud in the distribution, collection, and counting of ballots in Michigan, as well as violations of state law as to certain election challengers and the manipulation of ballots through corrupt election machines and software, Plaintiffs filed the current lawsuit against Defendants at 11:48 p.m. on November 25, 2020—the eve of the Thanksgiving holiday. (ECF No. 1.) Plaintiffs are registered Michigan voters and nominees of the Republican Party to be Presidential Electors on behalf of the State of Michigan. (ECF No. 6 at Pg ID 882.) They are suing Governor Whitmer and Secretary of State Jocelyn Benson in their official capacities, as well as the Michigan Board of State Canvassers.
On November 29, a Sunday, Plaintiffs filed a First Amended Complaint (ECF No. 6), “Emergency Motion for Declaratory, Emergency, and Permanent Injunctive Relief and Memorandum in Support Thereof” (ECF No. 7), and Emergency Motion to Seal (ECF No. 8). In their First Amended Complaint, Plaintiffs allege three claims pursuant to 42 U.S.C. § 1983: (Count I) violation of the Elections and Electors Clauses; (Count II) violation of the Fourteenth Amendment Equal Protection Clause; and, (Count III) denial of the Fourteenth Amendment Due Process Clause. (ECF No. 6.) Plaintiffs also assert one count alleging violations of the Michigan Election Code. ( Id .)
By December 1, motions to intervene had been filed by the City of Detroit (ECF No. 15), Robert Davis (ECF No. 12), and the Democratic National Committee and Michigan Democratic Party (“DNC/MDP”) (ECF No. 14). On that date, the Court entered a briefing schedule with respect to the motions. Plaintiffs had not yet served Defendants with their pleading or emergency motions as of December 1. Thus, on December 1, the Court also entered a text-only order to hasten Plaintiffs’ actions to bring Defendants into the case and enable the Court to address Plaintiffs’ pending motions. Later the same day, after Plaintiffs filed certificates of service reflecting service of the summons and Amended Complaint on Defendants (ECF Nos. 21), the Court entered a briefing schedule with respect to Plaintiffs’ emergency motions, requiring response briefs by 8:00 p.m. on December 2, and reply briefs by 8:00 p.m. on December 3 (ECF No. 24).
On December 2, the Court granted the motions to intervene. (ECF No. 28.) Response and reply briefs with respect to Plaintiffs’ emergency motions were thereafter filed. (ECF Nos. 29, 31, 32, 34, 35, 36, 37, 39, 49, 50.) Amicus curiae Michigan State Conference NAACP subsequently moved and was granted leave to file a brief in support of Defendants’ position. (ECF Nos. 48, 55.) Supplemental briefs also were filed by the parties. (ECF Nos. 57, 58.)
In light of the limited time allotted for the Court to resolve Plaintiffs’ emergency motion for injunctive relief—which Plaintiffs assert “must be granted in advance of December 8, 2020” (ECF No. 7 at Pg ID 1846)—the Court has disposed of oral argument with respect to their motion pursuant to Eastern District of Michigan Local Rule 7.1(f). [1]
II. Standard of Review
A preliminary injunction is “an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.”
Winter v.
Nat. Res. Def. Council, Inc.
,
Four factors are relevant in deciding whether to grant preliminary injunctive
relief: “‘(1) whether the movant has a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable injury absent the injunction; (3)
whether the injunction would cause substantial harm to others; and (4) whether the
public interest would be served by the issuance of an injunction.’”
Daunt v.
Benson
,
III. Discussion
The Court begins by discussing those questions that go to matters of subject matter jurisdiction or which counsel against reaching the merits of Plaintiffs’ claims. While the Court finds that any of these issues, alone, indicate that Plaintiffs’ motion should be denied, it addresses each to be thorough.
A. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution provides: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. This immunity extends to suits brought by citizens against
their own states.
See, e.g., Ladd v. Marchbanks
,
A suit against a State, a state agency or its department, or a state official is in
fact a suit against the State and is barred “regardless of the nature of the relief
sought.”
Pennhurst State Sch. & Hosp.
,
Eleventh Amendment immunity is subject to three exceptions: (1)
congressional abrogation; (2) waiver by the State; and (3) “a suit against a state
official seeking prospective injunctive relief to end a continuing violation of
federal law.”
See Carten v. Kent State Univ.
,
The third exception arises from the Supreme Court’s decision in
Ex parte
Young
,
To interpret Young to permit a federal-court action to proceed in every case where prospective declaratory and injunctive relief is sought against an officer, named in his individual capacity, would be to adhere to an empty formalism and to undermine the principle … that Eleventh Amendment immunity represents a real limitation on a federal court’s federal-question jurisdiction. The real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading. Application of the Young exception must reflect a proper understanding of its role in our federal system and respect for state courts instead of a reflexive reliance on an obvious fiction.
Idaho v. Coeur d’Alene Tribe of Idaho
,
Ex parte Young does not apply, however, to state law claims against state officials, regardless of the relief sought. Pennhurst State Sch. & Hosp. , 465 U.S. at 106 (“A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.”); see also In re Ohio Execution Protocol Litig ., 709 F. App’x 779, 787 (6th Cir. 2017) (“If the plaintiff sues a state official under state law in federal court for actions taken within the scope of his authority, sovereign immunity bars the lawsuit regardless of whether the action seeks monetary or injunctive relief.”). Unquestionably, Plaintiffs’ state law claims against Defendants are barred by Eleventh Amendment immunity.
The Court then turns its attention to Plaintiffs’ § 1983 claims against Defendants. Defendants and Intervenor DNC/MDP contend that these claims are not in fact federal claims as they are premised entirely on alleged violations of state law. (ECF No. 31 at Pg ID 2185 (“Here, each count of Plaintiffs’ complaint—even Counts I, II, and III, which claim to raise violations of federal law—is predicated on the election being conducted contrary to Michigan law.”); ECF No. 36 at Pg ID 2494 (“While some of [Plaintiffs’] allegations concern fantastical conspiracy theories that belong more appropriately in the fact-free outer reaches of the Internet[,] … what Plaintiffs assert at bottom are violations of the Michigan Election Code.”) Defendants also argue that even if properly stated as federal causes of action, “it is far from clear whether Plaintiffs’ requested injunction is actually prospective in nature, as opposed to retroactive.” (ECF No. 31 at Pg ID 2186.)
The latter argument convinces this Court that
Ex parte Young
does not
apply. As set forth earlier, “‘[i]n order to fall with the
Ex parte Young
exception, a
claim must seek prospective relief to end a continuing violation of federal law.’”
Russell v. Lundergan-Grimes
,
Before this lawsuit was filed, the Michigan Board of State Canvassers had
already certified the election results and Governor Whitmer had transmitted the
State’s slate of electors to the United States Archivist. (ECF Nos. 31-4, 31-5.)
There is no continuing violation to enjoin.
See Rios v. Blackwell
, 433 F. Supp. 2d
848 (N.D. Ohio Feb. 7, 2006);
see also King Lincoln Bronzeville Neighborhood
Ass’n v. Husted
, No. 2:06-cv-00745,
For these reasons, the Court concludes that the Eleventh Amendment bars Plaintiffs’ claims against Defendants.
B. Mootness
This case represents well the phrase: “this ship has sailed.” The time has passed to provide most of the relief Plaintiffs request in their Amended Complaint; the remaining relief is beyond the power of any court. For those reasons, this matter is moot.
“‘Under Article III of the Constitution, federal courts may adjudicate only
actual, ongoing cases or controversies.’”
Kentucky v. U.S. ex rel. Hagel
, 759 F.3d
588, 595 (6th Cir. 2014) (quoting
Lewis v. Cont’l Bank Corp.
,
In their prayer for relief, Plaintiffs ask the Court to: (a) order Defendants to decertify the results of the election; (b) enjoin Secretary Benson and Governor Whitmer from transmitting the certified election results to the Electoral College; (c) order Defendants “to transmit certified election results that state that President Donald Trump is the winner of the election”; (d) impound all voting machines and software in Michigan for expert inspection; (e) order that no votes received or tabulated by machines not certified as required by federal and state law be counted; and, (f) enter a declaratory judgment that mail-in and absentee ballot fraud must be remedied with a manual recount or statistically valid sampling. [3] (ECF No. 6 at Pg ID 955-56, ¶ 233.) What relief the Court could grant Plaintiffs is no longer available.
Before this lawsuit was filed, all 83 counties in Michigan had finished canvassing their results for all elections and reported their results for state office races to the Secretary of State and the Michigan Board of State Canvassers in accordance with Michigan law. See Mich. Comp. Laws § 168.843. The State Board had certified the results of the 2020 General Election and Governor Whitmer had submitted the slate of Presidential Electors to the Archivists. (ECF No. 31-4 at Pg ID 2257-58; ECF No. 31-5 at Pg ID 2260-63.) The time for requesting a special election based on mechanical errors or malfunctions in voting machines had expired. See Mich. Comp. Laws §§ 168.831, 168.832 (petitions for special election based on a defect or mechanical malfunction must be filed “no later than 10 days after the date of the election”). And so had the time for requesting a recount for the office of President. See Mich. Comp. Laws § 168.879.
The Michigan Election Code sets forth detailed procedures for challenging an election, including deadlines for doing so. Plaintiffs did not avail themselves of the remedies established by the Michigan legislature. The deadline for them to do so has passed. Any avenue for this Court to provide meaningful relief has been foreclosed. As the Eleventh Circuit Court of Appeals recently observed in one of the many other post-election lawsuits brought to specifically overturn the results of the 2020 presidential election:
“We cannot turn back the clock and create a world in which” the 2020 election results are not certified.
Fleming v. Gutierrez ,785 F.3d 442 , 445 (10th Cir. 2015). And it is not possible for us to delay certification nor meaningful to order a new recount when the results are already final and certified.
Wood v. Raffensperger
, -- F.3d -- ,
In short, Plaintiffs’ requested relief concerning the 2020 General Election is moot.
C. Laches
Defendants argue that Plaintiffs are unlikely to succeed on the merits because they waited too long to knock on the Court’s door. (ECF No. 31 at Pg ID 2175-79; ECF No. 39 at Pg ID 2844.) The Court agrees.
The doctrine of laches is rooted in the principle that “equity aids the vigilant,
not those who slumber on their rights.”
Lucking v. Schram
,
First, Plaintiffs showed no diligence in asserting the claims at bar. They filed the instant action on November 25—more than 21 days after the 2020 General Election—and served it on Defendants some five days later on December 1. (ECF Nos. 1, 21.) If Plaintiffs had legitimate claims regarding whether the treatment of election challengers complied with state law, they could have brought their claims well in advance of or on Election Day—but they did not. Michigan’s 83 Boards of County Canvassers finished canvassing by no later than November 17 and, on November 23, both the Michigan Board of State Canvassers and Governor Whitmer certified the election results. Mich. Comp. Laws §§ 168.822, 168.842.0. If Plaintiffs had legitimate claims regarding the manner by which ballots were processed and tabulated on or after Election Day, they could have brought the instant action on Election Day or during the weeks of canvassing that followed—yet they did not. Plaintiffs base the claims related to election machines and software on “expert and fact witness” reports discussing “glitches” and other alleged vulnerabilities that occurred as far back as 2010. ( See e.g., ECF No. 6 at Pg ID 927-933, ¶¶ 157(C)-(E), (G), 158, 160, 167.) If Plaintiffs had legitimate concerns about the election machines and software, they could have filed this lawsuit well before the 2020 General Election—yet they sat back and did nothing.
Plaintiffs proffer no persuasive explanation as to why they waited so long to file this suit. Plaintiffs concede that they “would have preferred to file sooner, but [] needed some time to gather statements from dozens of fact witnesses, retain and engage expert witnesses, and gather other data supporting their Complaint.” (ECF No. 49 at Pg ID 3081.) But according to Plaintiffs themselves, “[m]anipulation of votes was apparent shortly after the polls closed on November 3, 2020 .” (ECF No. 7 at Pg ID 1837 (emphasis added).) Indeed, where there is no reasonable explanation, there can be no true justification. See Crookston v. Johnson , 841 F.3d 396, 398 (6th Cir. 2016) (identifying the “first and most essential” reason to issue a stay of an election-related injunction is plaintiff offering “no reasonable explanation for waiting so long to file this action”). Defendants satisfy the first element of their laches defense.
Second, Plaintiffs’ delay prejudices Defendants.
See Kay v. Austin
, 621 F.2d
809, 813 (6th Cir. 1980) (“As time passes, the state’s interest in proceeding with
the election increases in importance as resources are committed and irrevocable
decisions are made, and the candidate’s claim to be a serious candidate who has
received a serious injury becomes less credible by his having slept on his rights.”)
This is especially so considering that Plaintiffs’ claims for relief are not merely
last-minute—they are after the fact. While Plaintiffs delayed, the ballots were cast;
the votes were counted; and the results were certified. The rationale for
interposing the doctrine of laches is now at its peak.
See McDonald v. Cnty. of San
Diego
,
Plaintiffs could have lodged their constitutional challenges much sooner than they did, and certainly not three weeks after Election Day and one week after certification of almost three million votes. The Court concludes that Plaintiffs’ delay results in their claims being barred by laches.
D. Abstention
As outlined in several filings, when the present lawsuit was filed on
November 25, 2020, there already were multiple lawsuits pending in Michigan
state courts raising the same or similar claims alleged in Plaintiffs’ Amended
Complaint. (
See, e.g.
, ECF No. 31 at Pg ID 2193-98 (summarizing five state court
lawsuits challenging President Trump’s defeat in Michigan’s November 3, 2020
General Election).) Defendants and the City of Detroit urge the Court to abstain
from deciding Plaintiffs’ claims in deference to those proceedings under various
abstention doctrines. (
Id.
at Pg ID 2191-2203; ECF No. 39 at Pg ID 2840-44.)
Defendants rely on the abstention doctrine outlined by the Supreme Court in
Colorado River Water Conservation District v. United States
,
The abstention doctrine identified in
Colorado River
permits a federal court
to abstain from exercising jurisdiction over a matter in deference to parallel state-
court proceedings.
Colorado River
,
First, the court must determine that the concurrent state and federal actions are parallel. Id . at 339. Second, the court must consider the factors outlined by the Supreme Court in Colorado River and subsequent cases:
(1) whether the state court has assumed jurisdiction over any res or property; (2) whether the federal forum is less convenient to the parties; (3) avoidance of piecemeal litigation; … (4) the order in which jurisdiction was obtained; … (5) whether the source of governing law is state or federal; (6) the adequacy of the state court action to protect the federal plaintiff’s rights; (7) the relative progress of the state and federal proceedings; and (8) the presence or absence of concurrent jurisdiction.
Romine
,
As summarized in Defendants’ response brief and reflected in their exhibits
(
see
ECF No. 31 at Pg ID 2193-97;
see also
ECF Nos. 31-7, 31-9, 31-11, 31-12,
31-14), the allegations and claims in the state court proceedings and the pending
matter are, at the very least, substantially similar,
Romine
,
The first and second factor weigh against abstention.
Id.
(indicating that the
weight is against abstention where no property is at issue and neither forum is
more or less convenient). While the Supreme Court has stated that “‘the presence
of federal law issues must always be a major consideration weighing against
surrender of federal jurisdiction in deference to state proceedings[,]’”
id
. at 342
(quoting
Moses H. Cone
,
“Piecemeal litigation occurs when different courts adjudicate the identical
issue, thereby duplicating judicial effort and potentially rendering conflicting
results.”
Id.
at 341. The parallel proceedings are premised on similar factual
allegations and many of the same federal and state claims. The state court
proceedings were filed well before the present matter and at least three of those
matters are far more advanced than this case. Lastly, as Congress conferred
concurrent jurisdiction on state courts to adjudicate § 1983 claims,
Felder v. Casey
,
For these reasons, abstention is appropriate under the Colorado River doctrine. The Court finds it unnecessary to decide whether abstention is appropriate under other doctrines.
E. Standing
Under Article III of the United States Constitution, federal courts can
resolve only “cases” and “controversies.” U.S. Const. art. III § 2. The case-or-
controversy requirement is satisfied only where a plaintiff has standing to bring
suit.
See Spokeo, Inc. v. Robins
,
1. Equal Protection Claim
Plaintiffs allege that Defendants engaged in “several schemes” to, among
other things, “destroy,” “discard,” and “switch” votes for President Trump, thereby
“devalu[ing] Republican votes” and “diluting” the influence of their individual
votes. (ECF No. 49 at Pg ID 3079.) Plaintiffs contend that “the vote dilution
resulting from this systemic and illegal conduct did not affect all Michigan voters
equally; it had the intent and effect of inflating the number of votes for Democratic
candidates and reducing the number of votes for President Trump and Republican
candidates.” (ECF No. 49 at Pg ID 3079.) Even assuming that Plaintiffs establish
McPherson v. Kelsey
,
injury-in-fact and causation under this theory, [6] their constitutional claim cannot stand because Plaintiffs fall flat when attempting to clear the hurdle of redressability.
Plaintiffs fail to establish that the alleged injury of vote-dilution can be
redressed by a favorable decision from this Court. Plaintiffs ask this Court to de-
certify the results of the 2020 General Election in Michigan. But an order de-
certifying the votes of approximately 2.8 million people would not reverse the
dilution of Plaintiffs’ vote. To be sure, standing is not “dispensed in gross: A
plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.”
Gill
,
2. Elections Clause & Electors Clause Claims
The provision of the United States Constitution known as the Elections
Clause states in part: “The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the Legislature
thereof[.]” U.S. Const. art. I, § 4, cl. 1. “The Elections Clause effectively gives
state governments the ‘default’ authority to regulate the mechanics of federal
elections,
Foster v. Love
,
Plaintiffs argue that, as “nominees of the Republican Party to be Presidential Electors on behalf of the State of Michigan, they have standing to allege violations of the Elections Clause and Electors Clause because “a vote for President Trump and Vice-President Pence in Michigan … is a vote for each Republican elector[], and … illegal conduct aimed at harming candidates for President similarly injures Presidential Electors.” (ECF No. 7 at Pg ID 1837-38; ECF No. 49 at Pg ID 3076- 78.)
But where, as here, the only injury Plaintiffs have alleged is that the
Elections Clause has not been followed, the United States Supreme Court has made
clear that “[the] injury is precisely the kind of undifferentiated, generalized
grievance about the conduct of government that [courts] have refused to
countenance.”
[7]
Lance v. Coffman
,
This is so because the Elections Clause grants rights to “the Legislature” of
“each State.” U.S. Const. art. I, § 4, cl. 1. The Supreme Court interprets the words
“the Legislature,” as used in that clause, to mean the lawmaking bodies of a state.
Ariz. State Legislature
,
To support their contention that they have standing, Plaintiffs point to
Carson v. Simon
,
I am not convinced the Electors have Article III standing to assert claims under the Electors Clause. Although Minnesota law at times refers to them as “candidates,” see, e.g ., Minn. Stat. § 204B.03 (2020), the Electors are not candidates for public office as that term is commonly understood. Whether they ultimately assume the office of elector depends entirely on the outcome of the state popular vote for president. Id . § 208.04 subdiv. 1 (“[A] vote cast for the party candidates for president and vice president shall be deemed a vote for that party’s electors.”). They are not presented to and chosen by the voting public for their office, but instead automatically assume that office based on the public’s selection of entirely different individuals.
Plaintiffs contend that the Michigan Election Code and relevant Minnesota law are similar. (See ECF No. 49 at Pg ID 3076-78.) Even if the Court were to agree, it finds that Plaintiffs lack standing to sue under the Elections and Electors Clauses.
F. The Merits of the Request for Injunctive Relief 1. Likelihood of Success on the Merits The Court may deny Plaintiffs’ motion for injunctive relief for the reasons discussed above. Nevertheless, the Court will proceed to analyze the merits of their claims.
a. Violation of the Elections & Electors Clauses Plaintiffs allege that Defendants violated the Elections Clause and Electors Clause by deviating from the requirements of the Michigan Election Code. ( See, e.g., ECF No. 6 at Pg ID 884-85, ¶¶ 36-40, 177-81, 937-38.) Even assuming Defendants did not follow the Michigan Election Code, Plaintiffs do not explain how or why such violations of state election procedures automatically amount to violations of the clauses. In other words, it appears that Plaintiffs’ claims are in fact state law claims disguised as federal claims.
A review of Supreme Court cases interpreting these clauses supports this
conclusion. In
Cook v. Gralike
, the Supreme Court struck down a Missouri law
that required election officials to print warnings on the ballot next to the name of
any congressional candidate who refused to support term limits after concluding
that such a statute constituted a “‘regulation’ of congressional elections,” as used in
the Elections Clause.
By asking the Court to find that they have made out claims under the clauses due to alleged violations of the Michigan Election Code, Plaintiffs ask the Court to find that any alleged deviation from state election law amounts to a modification of state election law and opens the door to federal review. Plaintiffs cite to no case— and this Court found none—supporting such an expansive approach.
b. Violation of the Equal Protection Clause
Most election laws will “impose some burden upon individual voters.”
Burdick v. Takushi
,
Plaintiffs attempt to establish an Equal Protection claim based on the theory that Defendants engaged in “several schemes” to, among other things, “destroy,” “discard,” and “switch” votes for President Trump, thereby “devalu[ing] Republican votes” and “diluting” the influence of their individual votes. (ECF No. 49 at Pg ID 3079.)
But, to be perfectly clear, Plaintiffs’ equal protection claim is not supported
by any allegation that Defendants’ alleged schemes caused votes for President
Trump to be changed to votes for Vice President Biden. For example, the closest
Plaintiffs get to alleging that physical ballots were altered in such a way is the
following statement in an election challenger’s sworn affidavit: “I believe some of
these workers were changing votes that had been cast for Donald Trump and other
Republican candidates.”
[9]
(ECF No. 6 at Pg ID 902 ¶ 91 (citing Aff. Articia
Bomer, ECF No. 6-3 at Pg ID 1008-1010).) But of course, “[a] belief is not
evidence” and falls far short of what is required to obtain any relief, much less the
extraordinary relief Plaintiffs request.
United States v. O’Connor
, No. 96-2992,
With nothing but speculation and conjecture that votes for President Trump
were destroyed, discarded or switched to votes for Vice President Biden, Plaintiffs’
equal protection claim fails.
[11]
See Wood
,
2.
Irreparable Harm & Harm to Others
Because “a finding that there is simply no likelihood of success on the merits
is usually fatal[,]”
Gonzales v. Nat’l Bd. of Med. Examiners
,
As discussed, Plaintiffs fail to show that a favorable decision from the Court would redress their alleged injury. Moreover, granting Plaintiffs’ injunctive relief would greatly harm the public interest. As Defendants aptly describe, Plaintiffs’ requested injunction would “upend the statutory process for election certification and the selection of Presidential Electors. Moreover, it w[ould] disenfranchise millions of Michigan voters in favor [of] the preferences of a handful of people who [are] disappointed with the official results.” (ECF No. 31 at Pg ID 2227.)
In short, none of the remaining factors weigh in favor of granting Plaintiffs’ request for an injunction.
IV. Conclusion
For these reasons, the Court finds that Plaintiffs are far from likely to succeed in this matter. In fact, this lawsuit seems to be less about achieving the relief Plaintiffs seek—as much of that relief is beyond the power of this Court— and more about the impact of their allegations on People’s faith in the democratic process and their trust in our government. Plaintiffs ask this Court to ignore the orderly statutory scheme established to challenge elections and to ignore the will of millions of voters. This, the Court cannot, and will not, do.
The People have spoken.
The Court, therefore, DENIES Plaintiffs’ “Emergency Motion for Declaratory, Emergency, and Permanent Injunctive Relief” (ECF No. 7.)
IT IS SO ORDERED .
s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE Dated: December 7, 2020
Notes
[1] “‘[W]here material facts are not in dispute, or where facts in dispute are not
material to the preliminary injunction sought, district courts generally need not
hold an evidentiary hearing.’”
Nexus Gas Transmission, LLC v. City of Green,
Ohio
,
[2] To the extent Plaintiffs ask the Court to certify the results in favor of President Donald J. Trump, such relief is beyond its powers.
[3] Plaintiffs also seek an order requiring the impoundment of all voting machines and software in Michigan for expert inspection and the production of security camera footage from the TCF Center for November 3 and 4. (ECF No. 6 at Pg ID 956, ¶ 233.) This requested relief is not meaningful, however, where the remaining requests are no longer available. In other words, the evidence Plaintiffs seek to gather by inspecting voting machines and software and security camera footage only would be useful if an avenue remained open for them to challenge the election results.
[4] State courts have concurrent jurisdiction over § 1983 actions.
Felder v. Casey
,
[5] Plaintiffs assert a due process claim in their Amended Complaint and twice state in their motion for injunctive relief that Defendants violated their due process rights. ( See ECF No. 7 at Pg ID 1840, 1844.) Plaintiffs do not pair either statement with anything the Court could construe as a developed argument. ( Id .) The Court finds it unnecessary, therefore, to further discuss the due process claim.
[6] To be clear, the Court does not find that Plaintiffs satisfy the first two elements of the standing inquiry.
[7] Although separate constitutional provisions, the Electors Clause and Elections
Clause share “considerable similarity,”
Ariz. State Leg. v. Ariz. Indep. Redistricting
Comm’n
,
[8] In addition, at least one Circuit Court, the Third Circuit Court of Appeals, has
distinguished
Carson
’s holding, noting:
Our conclusion departs from the recent decision of an
Eighth Circuit panel which, over a dissent, concluded
that candidates for the position of presidential elector had
standing under
Bond
to challenge a Minnesota state-court
consent decree that effectively extended the receipt
deadline for mailed ballots. . . . The
Carson
court appears
to have cited language from
Bond
without considering
the context—specifically, the Tenth Amendment and the
reserved police powers—in which the U.S. Supreme
Court employed that language. There is no precedent for
expanding
Bond
beyond this context, and the
Carson
court cited none.
Bognet
,
[9] Plaintiffs allege in several portions of the Amended Complaint that election officials improperly tallied, counted, or marked ballots. But some of these allegations equivocate with words such as “believe” and “may” and none of these allegations identify which presidential candidate the ballots were allegedly altered to favor. ( See, e.g., ECF No. 6 at Pg ID 902, ¶ 91 (citing Aff. Articia Bomer, ECF No. 6-3 at Pg ID 1008-10 (“I believe some of these ballots may not have been properly counted.” (emphasis added))); Pg ID 902-03, ¶ 92 (citing Tyson Aff. ¶ 17) (“At least one challenger observed poll workers adding marks to a ballot where there was no mark for any candidate.”).
[10] As stated by the Circuit Court for the District of Columbia Circuit:
The statement is that the complainant believes and
expects to prove some things. Now his belief and
expectation may be in good faith; but it has been
repeatedly held that suspicion is not proof; and it is
equally true that belief and expectation to prove cannot
be accepted as a substitute for fact. The complainant
carefully refrains from stating that he has any
information upon which to found his belief or to justify
his expectation; and evidently he has no such
information. But belief, without an allegation of fact
either upon personal knowledge or upon information
reasonably sufficient upon which to base the belief,
cannot justify the extraordinary remedy of injunction.
Magruder v. Schley
,
[11] “[T]he Voter Plaintiffs cannot analogize their Equal Protection claim to
gerrymandering cases in which votes were weighted differently. Instead, Plaintiffs
advance an Equal Protection Clause argument based solely on state officials’
alleged violation of state law that does not cause unequal treatment. And if
dilution of lawfully cast ballots by the ‘unlawful’ counting of invalidly cast ballots
were a true equal-protection problem, then it would transform every violation of
state election law (and, actually, every violation of every law) into a potential
federal equal-protection claim requiring scrutiny of the government’s ‘interest’ in
failing to do more to stop the illegal activity. That is not how the Equal Protection
Clause works.”
Bognet
,